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Abolition of China's Unequal Treaties and the Search for Regional Stability in Asia, 1919-1943

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Abolition of China's Unequal Treaties and the Search for Regional Stability in Asia, 1919-1943 Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 1-1994 Abolition of China's Unequal Treaties and the Search for Regional Stability in Asia, 1919-1943 Charlotte Ku Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation Charlotte Ku, Abolition of China's Unequal Treaties and the Search for Regional Stability in Asia, 1919-1943, 12 Chinese (Taiwan) Y.B. Int'l L. & Aff. 67 (1994). Available at: https://scholarship.law.tamu.edu/facscholar/413 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. ABOLITION OF CHINA'S UNEQUAL TREATIES AND THE SEARCH FOR REGIONAL STABILITY IN ASIA, 1919-1943* CHARLOTTE Ku** TABLE OF CONTENTS I. Development of China's Unequal Treaty System ......... 67 II. China at the Paris Peace Conference: The Sanctity of Treaties ................................................... 70 III. The Failure of Incremental Change: Article XIX of the League of Nations Covenant ............................. 73 IV. The Pursuit of Regional Stability Through the Washington Conference .................................. 76 V. China's Program of National Reunification .............. 79 VI. World War II and the End of the Treaty System ......... 82 VII. Conclusion: China's Search for Equality and Independence ........................................ 83 I. DEVELOPMENT OF CHINA'S UNEQUAL TREATY SYSTEM On July 1, 1997, China will resume control over Hong Kong - territory ceded to Britain in 1842 following China's defeat in the Opium War. The settlement of the Hong Kong question and the scheduled 1999 reversion of Macao from Portugal to China will effec- tively remove the last traces of the restrictions and encroachments placed on China by treaty for 150 years following the 1842 Treaty of Nanking. The "unequal" treaty system began with the trading and residen- tial privileges provided by the Treaty of Nanking. Britain was the pre- mier trading power in China in the nineteenth century, and the treaty * Sections of this paper appeared as "Change and Stability in the International System: China Secures Revision of the Unequal Treaties," in Essays in Honour of Wang Tieya, R. St. J. Macdonald, ed., DordrechtlBoston/London: Martinus Nijhoff Publishers, 1993, pp. 447-61. It is reprinted here with permission. ** Executive Director of the American Society of International Law (ASIL). A for- mer visiting professor at the Johns Hopkins University Nanjing (China) Center and Assis- tant Professor, Department of Government and Foreign Affairs, the University of Virginia. Dr. Ku has also taught at the American University and worked in the U.S. Senate and the Office of Legal Affairs, United Nations Headquarters, New York. Educated at the Fletcher School of Law and Diplomacy and the American University, Dr. Ku has written on multilateral cooperation, concepts of international relations, and China's diplomacy, particularly of the 1920's. She is the author of "Images to Frame the Discourse: Group Cohesion and the State," in History of European Ideas (March 1994). (67) ABOLITION OF CHINA'S UNEQUAL TREATIES and trading system that developed there were largely of British de- sign. The United States and France benefitted from this framework, and added to it. Russia added border issues and overland trade to the system. Germany and Japan, latecomers to the China trade, essen- tially had to confine their activities to the framework created by the earlier powers in China. The Treaty of Nanking with the United Kingdom and separate treaties concluded with the United States and France opened China to trade with the outside. The two basic elements of the treaty frame- work were the most favored nation clause and diplomatic relations on an equal footing. Some form of the most favored nation clause was used by all the treaty powers from the outset to ensure that they would receive no less in rights and privileges than their fellow treaty powers. China granted this freely. For the Chinese, it seemed only logical that what was granted to one "sea barbarian" should be granted to another. This liberal granting of most favored nation status would later work to China's disadvantage when it sought to revise its treaties. The clause bound all the treaty powers together, making it impossible for China to restructure its treaty relations with one with- out involving all the powers. The treaties provided for diplomatic relations on a footing of equality, but initially had little effect on the Chinese world view, since such relations were restricted to the coastal cities opened for foreign residence and trade and were to be conducted locally by local officials. For the Chinese, this was an important victory; it safeguarded the cap- ital and the emperor from any foreign presence. The next intrusive developments in the treaty system date from the 1858 Treaty of Tientsin, concluded following the Taiping Rebellion and the Chinese defeat, again by Britain, in the 1856 Arrow War. This treaty provided for a foreign-run Chinese customs service, won the powers the right of permanent representation at the capital, and se- cured the creation of the Tsungli Yamen (Chinese foreign office) to handle foreign affairs. By the turn of the century, China had moved from granting trading privileges at Chinese ports to acknowledgement that it could no longer control its borderlands' or prevent territorial 1. British protectorates were established in Burma in 1886, in Sikkim in 1890, and in Tibet in 1904. See Inspector General of Customs, Treaties, Conventions, etc. Between China and Foreign States, vol. 1, Shanghai: Statistical Department of the Inspector General of Customs, 1908, pp. 314-16, 321-23, 460-67. A French protectorate was set up in Annam in 1886. See texts of treaties regulating these relations in ibid., vol. 1, pp. 689-700 and 713- 33. Japan set up a protectorate in Korea in 1895 and colonized it in 1910. See ibid., vol. 2, pp. 1318-31. Vol. 12, 1992-1994 CHINESE YEARBOOK encroachments on China itself.2 The competition for rights and privi- leges verged on threatening the continued existence of the state. Fearful that a partition of China would destroy the treaty frame- work which supported its own privileges and interests, Britain sought to temper the "scramble" by advocating a policy of territorial integrity for China and equal opportunity for all trading powers. However, as the power whose trade in 1899 represented more than half of all the China trade (35 out of a total 55 million pounds sterling), Britain was not in a position to take the lead; it instead encouraged the United States to pursue the "open door" in China. U.S. embassies in France, Germany, Great Britain, Italy, Japan and Russia sought support and compliance with this policy in an 1899 circular memorandum. The responses were ambiguous, but U.S. Sec- retary of State John Hay declared the policy adopted on March 20, 1900. He committed the United States to a policy to "preserve Chi- nese territorial and administrative integrity .... ", The interest of the powers in China now shifted from extracting favorable trading ar- rangements to ensuring regional stability to protect interests already acquired. In the twentieth century, China's attempts to break out of these arrangements would be alternately advanced or held back as the pow- ers calculated the potential importance of China's efforts as a factor in ensuring regional stability. For the outside powers, this eventually boiled down to a choice of supporting China or Japan in the Pacific. As Japan emerged as a rival to their interests after World War I, the outside powers sought to protect China and to shore it up as a coun- terweight to the expansion of Japanese power. This undercurrent per- sisted to the very end throughout Chinese efforts to revise the unequal treaties. Revision was accomplished in 1943, when new treaties with the United Kingdom and the United States abolished such intrusive practices as extraterritoriality.4 2. In addition to the cession of Hong Kong to the British, foreign encroachments on China were made by: Portugal: China confirmed Portugal's "perpetual occupation and government of Ma- cao .... in 1887. See ibid., vol. 2, p. 1009; Germany: leased Kiaochow Bay from China in 1898. See ibid., vol. 2, pp. 930-43; Russia: leased Dalien Bay, including Port Arthur, from China in 1898. See ibid., vol. 1, pp. 119-21; Britain: leased 355 sq. miles to expand British holdings in Hong Kong. The expiration of this lease in 1997 led to the Hong Kong settle- ment between China and the United Kingdom in 1982. Also leased Weihaiwei from China in 1898; France: leased Kuang-chou Wan from China in 1898. See ibid., vol. 1, pp. 128-30. 3. U.S. Department of State, Foreign Relations of the United States, 1899, Washington, D.C.: U.S. Government Printing Office, 1924, p. 142. 4. The term "extraterritoriality" is used here to mean the consular supervision of for- eign nationals in China. ABOLITION OF CHINA'S UNEQUAL TREATIES II. CHINA AT THE PARIS PEACE CONFERENCE: THE SANCTITY OF TREATIES The obligations imposed on China by the treaty system begun by the Treaty of Nanking established myriad special privileges and spheres of influence which, by the early twentieth century, made China virtually ungovernable. China's inability to maintain an effec- tive central government after the abdication of the last Ch'ing em- peror in 1912 and its eventual lapse into warlordism were the byproducts of these special privileges and the efforts made to maintain them.
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